I’ve been following with interest the so-called #IBoR conversations on Twitter, aka the Internet Bill of Rights. As the White House website petition ends today, and it failed (as of this writing) to achieve a 1/3 of the required 100,000, I thought maybe people should start talking about why it failed. And maybe how we could make something better.

Or somebody. I’m not saying I’m volunteering. What the hell do I know anyway… I’m just an “internet researcher.”

For posterity, here is the failed draft, accredited to “A.M.” on the site:

Internet forums and social networks which provide free access to the public are a digital place of assembly, and individuals using such methods for public communication should not be subjected to censorship due to political beliefs or differing ideas. Conservative voices on many large public website platforms are being censored, based solely on a differing opinion. Some of these platforms further employ tracking mechanisms for monitoring an individual’s digital history, which can be used to censor the individual’s public communication through various censorship practices, sometimes without knowledge or awareness. These actions directly violate personal liberty and stand at contrast with the bill of rights.

We the people demand action to bring our digital future into the light.

Thought it might be useful for my own brain if no one else to break this down into claims and assumptions – pick it apart a little bit before putting it back together again. I’ll do it internet research-style…

Domain applicable: Internet forums and social networks.

Claim: “which provide free access to the public“

Question: How accurate is that claim? “Free access” makes it sound like there is no cost to the user of the system. That is, it costs nothing to join. While that may be the case, the provider offers those services, assuming the cost of the infrastructure to build, maintain and continue to offer the service.

I would feel better with maybe phrasing such as “which offer open access” to the public. “Offer” also puts us in the mood of an economic exchange, or transaction. One party offers something, and the other accepts or denies the offer based on relative value perceived by each party.

“Open access” would then mean something like “anyone can join, because we don’t check you first.”

Not addressed:

Who owns platforms & services?

Are they privately owned? What rights does private ownership entail?

What are the costs associated with offering “open access” to a service at no cost to users at scale?

Do corporations, as a legal extension of the natural human persons of which their membership is composed, themselves have rights?

Such as the right to stipulate acceptable usage policies (“Terms of Service”) in exchange for providing open access?

I’m not saying I have all the answers there. But these questions of private property, and the rights of natural persons and corporate persons to exercise linked rights have not been addressed in this draft. And I think it’s one of the fundamental reasons it failed. A document like this, whose ultimate aim is to be an Expression of the Truth™, must be rooted in a clearer understanding of the problem and the facts.

Now, I’m not a factologist, but I know how to do Google Searches. I found this thing on Investopedia (whose credibility I have no idea) about something interesting in real estate called a “bundle of rights.”

“…a set of legal rights afforded to the real estate title holder. It can include the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition. “

Hm, so that’s interesting. Right to control, right to exclusion.

I’m also not a lawyer, but control and exclusion, hmmm…. reminds me of something. Can’t think of what… (Sorry for being snarky)

It sounds like owners of property have the right to control usage and to exclude from use that property.

If we acknowledge that those probably fundamental rights of private property pretty much do apply to platforms (hint: they do), then we have to start re-configuring already the rest of the document.

It’s not that the fundamental idea is false, or bad, or wrong. I actually very much agree with the main thrust of it. If we want to proceed and succeed, though, we have to reconfigure the approach, better ascertain what the problem is, and define more clearly what we’re asking.

The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably.[1] The Fourteenth Amendment to the United States Constitution makes this prohibition applicable to state governments.[2]

So the domain of applicability is first of all U.S. Congress, and secondly to state governments. Both of those are public actors. Not private entities.

It’s an interesting argument, but again doesn’t altogether address the idea that owners of private property can control and exclude use. (Will also come back to this idea another time when I’m not so bleary eyed. There’s a recent tech law case that backs this up.)

For now, the claim about “digital places of assembly” is not completely verified. Though the impulse behind it is duly noted.

Statement: “individuals using such methods for public communication”

I don’t want to be (too) pedantic, but there’s a lot to unpack there.

What does “public communication” mean?

It could mean a lot of things.

Communicating with the general public, or people in a general way. In other words, broadcasting or publishing. Both broadcasting and publishing are resource-intensive and infrastructure-dependent activities.

Public communication could also conceivably mean talking with friends and family. (Though, is that really ‘the public?’) If two parties to a message or communication are in physical proximity, they could speak, or, at greater distances, shout. Beyond that, there is a cost associated with carrying a message from point or person A to point or person B. Again, it requires energy (as in radio waves), as well resources & infrastructure (a transceiver, wires, antenna, electrical energy source. None of those things are free of charge, nor are sending letters by post, using the phone system, etc.

So I guess my main point again is there is always a cost associated with communication. Even if it’s only trying to put it into the right words…

Ask: “should not be subjected to censorship”

So I’m labeling that as an ask and not a claim because there’s a “should.” It’s a thing that is not now true.

I’m still not clear on when/where/at what point we can definitively say that “censorship” is happening. If, like the rest of the First Amendment, it’s domain of applicability is Congress and state governments, I still think we’re barking up maybe the wrong tree to say that: private companies offering services with an attached acceptable use policy are doing something wrong or bad within the greater system of the law by exercising their rights as owners of private property to control and exclude usage. It’s not a fundamentally strong argument in a system (society) more or less completely based on rules around how ownership of private property works. We might need to try to re-word this and cut down to a stronger root of the matter.

Claim: “Conservative voices on many large public website platforms are being censored, based solely on a differing opinion.“

While I understand the feeling people have that informs this, I think there is some strong confirmation bias going on here. People feel like their point of view is being silenced, when in actuality in the vast majority of cases, it is their conduct, and not belief or opinion. Conduct relates again to the property owner’s right to control and exclude (nevermind the right to “enjoy”), which is set forth usually in the acceptable use policy/terms of service/rules/community guidelines, etc.

Problem: Different sites/services/platforms have different rules of conduct, different teams of moderators, and different tolerances of risk. This can be confusing for users. There are few standards which unify definitions or examples of acceptable and unacceptable types of behavior across the various platforms. In saying that, I think this is a real problem that industry can work on. Perhaps embedded in a larger contextual framework, this could become a useful component of a more fleshed out IBoR draft.

Claim: “Some of these platforms further employ tracking mechanisms for monitoring an individual’s digital history…“

This much of that sentence, at least, is a true claim. Many, most, or perhaps even all(?) services monitor and track usage of their service. The primary use case of this, of course, is to be able to provide that service.

One thing I like about the upcoming EU GDPR rules for protection of personal information is that companies are required to have fair processing statements, which require them to more explicitly say what they collect, why, and what they do with it.

This is, in my opinion, a very healthy and interesting development in the tech industry that Europe is leading the way on. I know how much it hurts the American ego to believe that Europe is ahead on anything, but this regulation’s enforcement (goes into effect May 25, 2018) will be interesting to watch, as it even compels foreign companies (each operating under their own national laws) to abide also by its principle when offering services to EU or EEA (European Economic Area) residents. In effect, companies complying with this rule set may begin operating at and offering to (at least EU) users a higher default data protection standard than they would normally under American law. So that’s a good thing, and it ironically might come to Americans by way of foreign governmental bodies instead of a #wethepeople internet petition.

Claim: “can be used to censor the individual’s public communication through various censorship practices, sometimes without knowledge or awareness.”

This claim goes back to tracking and monitoring, which GDPR talks about fairly extensively, if doesn’t give perfectly clear answers on.

This claim also rests on a questionable assumption: that because a technology can be used to do something, that it is being used to do that.

More broadly, if a company sees you’re not respecting its usage agreement by engaging in prohibited conduct on the platform, it doesn’t need to consider and for the most part isn’t interested in whatever your beliefs might be. It’s not important.

A question I’ve always wanted to know the answer to: if it’s (today) overwhelmingly self-identified “conservatives” (and I understand less and less what that term even means anymore) who feel they are being silenced by platforms, would it be fair to wonder whether that group is also more frequently engaging in conduct prohibited by the usage agreements?

Now, it might be a valid argument to say that a given platform usage agreement might lean in a certain direction politically. But if it’s private property, and they have the right to control, exclude, and enjoy, on what realistic legal grounds would we, should we, or could we urge them to change? What about platforms whose political biases we agree with? Should we also therefore reciprocally give other oppressed groups likewise consideration? I know the answer isn’t clear (or maybe for you it is and this is all hogwash(, but I think the lack of offering a clear framing of the full question, the full need, and the desired solution is what has lead to the failure of #IBOR.

Claim: “These actions directly violate personal liberty and stand at contrast with the bill of rights.”

What does “violate personal liberty” mean, specifically?

We believe that personal liberties are somehow linked to the Bill of Rights, which, again, applies to congress, and to some extent state governments. So there is a “contrast,” to be sure, but it is not what is implied in the above claim. It’s a different domain of applicability. The Bill of Rights limits what government can do.

The Internet Bill of Rights, should such a document arise (hint: actual real drafts of such a document do exist – written by, gasp! the UN – I’ll find and post links another day), would instead be asking government to limit what business can do. In effect, asking government to take away the “personal liberties” of corporations (compromised of humans exercising their liberties) through legislation – which I grew up always understanding being something conservatives were supposed to hate. So that’s confusing too.

Ask: “We the people demand action to bring our digital future into the light.”

I’m a bit disappointed this was the closing ask of the document.

“Demand action” is not a strong phrase. It doesn’t put the needs and rights of the person, the internet user – I feel – enough in the driver seat. It’s asking someone else to take action. But it’s a really frustratingly vague action. “Bring our digital future into the light.” What is this, a Rainbow Gathering? Did you bring your crystals? How will we know whether or we’ve reach this magical place of love and light?

That’s not to bash on the author of this document (to whom I do apologize for this completely sincere but necessary line-by-line public take-down), so much as it is to hopefully 🔨 hammer home the necessity of polishing the underlying desire into a 💎 of greater ✨, which might have much greater significance and reach into all of our lives.

Thanks for reading. Remember to like me on Steemit. (jk)

Don’t stop #IBOR’ing.*

And while you’re doing that, go set up your own blog, on your own server. Learn the costs.

*Where and as I have time, I’ll try to do more to contribute to “the movement,” rather than sitting silently on the sidelines.